Citation Nr: 0830867
Decision Date: 09/11/08 Archive Date: 09/22/08
DOCKET NO. 07-27 535 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim for service connection for the cause of the
veteran's death and dependency and indemnity compensation
(DIC).
REPRESENTATION
Appellant represented by: Homer H. Humphries, Jr., Esq.
ATTORNEY FOR THE BOARD
M. Purdum, Associate Counsel
INTRODUCTION
The veteran has unverified active service from March 1967 to
August 1971. The appellant seeks surviving spouse benefits.
This matter comes before the Board of Veterans' Appeals
(Board) from a February 2006 decision of a Department of
Veteran's Affairs (VA) Regional Office (RO) that denied the
appellant's claim for service connection for the cause of the
veteran's death and DIC.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
Additional development is needed prior to further disposition
of the claim.
Service connection for the cause of the veteran's death and
DIC was previously denied in a May 1972 rating decision.
While the RO treated the appellant's December 2005 claim for
service connection for the cause of the veteran's death and
DIC as a new claim, the Board must treat the December 2005
claim as an application to reopen a previously denied claim
for service connection for the cause of the veteran's death
and DIC. The Board must then consider the question of
whether new and material evidence has been received because
it goes to the Board's jurisdiction to reach the underlying
claim and adjudicate the claim de novo. Jackson v. Principi,
265 F.3d 1366 (Fed. Cir. 2001). If the Board finds that no
such evidence has been offered, that is where the analysis
must end. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).
A finally adjudicated claim is an application which has been
allowed or disallowed by the agency of original jurisdiction,
the action having become final by the expiration of one year
after the date of notice of an award or disallowance, or by
denial on appellate review, whichever is the earlier. 38
U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.302,
20.1103 (2007). Thus, the May 1972 decision became final
because the appellant's claim for service connection for the
cause of the veteran's death and DIC expired in May 1973, one
year after the date of the notice of the disallowance.
The claim for service connection for the cause of the
veteran's death and DIC may be reopened if new and material
evidence is submitted. Manio v. Derwinski, 1 Vet. App. 140
(1991). Under the applicable provisions, new evidence means
existing evidence not previously submitted to agency decision
makers. Material evidence means existing evidence that, by
itself or when considered with the previous evidence of
record, relates to an unestablished fact necessary to
substantiate the claim. New and material evidence can be
neither cumulative nor redundant of the evidence of record at
the time of the last prior final denial of the claim sought
to be reopened, and must raise a reasonable possibility of
substantiating the claim. 38 C.F.R. § 3.156(a) (2007). In
determining whether evidence is new and material, the
credibility of the new evidence is presumed. Justus v.
Principi, 3 Vet. App. 510 (1992).
The decision of the United States Court of Appeals for
Veterans Claims in Kent v. Nicholson requires that the
Secretary look at the bases for the prior denial and notify
the appellant as to what evidence is necessary to
substantiate the element or elements required to establish
service connection for the cause of the veteran's death and
DIC that were found insufficient at the time of the previous
denial. The question of what constitutes material evidence
to reopen a claim for service connection for the cause of the
veteran's death and DIC depends on the basis upon which the
prior claim was denied. Kent v. Nicholson, 20 Vet. App. 1
(2006). In this case, the appellant has not yet been
notified as to the specific evidence necessary to reopen her
claim service connection for the cause of the veteran's death
and DIC. On remand, the appellant should be so notified.
In support of her application to reopen her claim for service
connection for the cause of the veteran's death and DIC
benefits, the appellant has submitted a number of statements.
Significantly, in a letter to the Board, dated May 27, 2008,
the appellant's attorney stated that the appellant waived
further consideration by the RO and that the following
documents and additional evidence were enclosed: amended
Statement of Substantive Appeal; updated Appointment of
Individual As Claimant's Representative (Form 21-22a); copies
of FSA 782.02 and FSA 782.07; Affidavit of Margaret Smith-
Robinson as to facts; Affidavit of Margaret Smith-Robinson as
to status of witnesses; Affidavit of Carla Johnson; Affidavit
of Mamie R. Wilson; and Affidavit of Ernest C. Miller, M.D.
However, there were no enclosures included in the mailing.
In another letter to the Board, dated May 28, 2008, the
appellant's attorney described what appear to be the same
enclosures that he described in the May 27, 2008 letter.
However, only an amended Statement of Substantive Appeal,
Waiver of Regional Office Consideration, and updated Form 21-
22a were included. Thus, the Board has not had the
opportunity to consider the additional evidence as to the
Florida law or the five affidavits described by the
appellant's attorney. Because these records may include the
new and material evidence required to reopen the appellant's
previously denied claim for service connection for the cause
of the veteran's death and DIC benefits, they are relevant
and should be obtained. 38 C.F.R. § 3.159(c)(2)
(2007); Bell v. Derwinski, 2 Vet. App. 611 (1992).
Accordingly, the case is REMANDED for the following action:
1. Send the appellant a corrective
notice under 38 U.S.C.A. § 5103(a) that:
(1) notifies the appellant of the evidence
and information necessary to reopen the
claim for service connection for the cause
of the veteran's death and DIC, (i.e.,
describes what new and material evidence
is under the current standard); and (2)
notifies the appellant of what specific
evidence would be required to substantiate
the element or elements needed for service
connection for the cause of the veteran's
death and DIC that were found insufficient
in the prior denial on the merits (i.e.,
an opinion finding that the appellant did
not intentionally and wrongfully cause the
death of the veteran). 38 U.S.C.A. §
5103(a) (2007).
2. Obtain, and associate with the claims
file, the additional evidence described in
the letters submitted in May 2008 by the
appellant's attorney. Specifically, the
additional evidence required is as
follows: (1) copy of FSA 782.02; (2) copy
of FSA 782.07; (3) Affidavit of Margaret
Smith-Robinson as to facts; (4) Affidavit
of Margaret Smith-Robinson as to status of
witnesses; (5) Affidavit of Carla Johnson;
(6) Affidavit of Mamie R. Wilson; and (7)
Affidavit of Ernest C. Miller, M.D.
3. Then, after ensuring any other
necessary development has been completed,
the RO/AMC should readjudicate the
appellant's claim for service connection
for the cause of the veteran's death and
DIC. If the decision remains adverse to
the appellant, issue a supplemental
statement of the case to the appellant and
her attorney. Allow the appropriate time
for response, then return the case to the
Board.
The Board intimates no opinion as to the outcome of this
case. The appellant need take no action until so informed.
The purpose of this REMAND is to ensure compliance with due
process considerations.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
_________________________________________________
C. TRUEBA
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).